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By Amy Davis
My primary focus in my law practice is divorce and everything that comes with it, such as, what do we do about the kids? Even if we work out a parenting agreement to finalize the divorce, things can change over time, sometimes warranting a change in the parenting schedule. This case looks at whether the trial court can modify parental rights and responsibilities when it’s not specifically raised in the parents’ pleadings.
Mom and Dad divorced in August 2016. They have two children. The parents resided in Enosburg while married, and after their divorce, Dad remained in Enosburg, and Mom relocated to St. Albans. The children continued to attend the same child care and school programs they did prior to the divorce.
The final stipulation ordered that the parents share legal and physical custody (we call it “rights and responsibilities” in Legal Land). The children’s primary residence was with Mom, and the children would attend school in the town where Mom resided (except St. Albans—apparently the parents didn’t like that school).
The parent-child contact schedule included contact for Dad. The parents at some point shifted the contact schedule, but Dad ultimately ended up with 5 nights in a two week time period whether they followed the written order or subsequent agreement.
In December 2016, Mom notified Dad that she wanted to purchase a home in Proctor (which is pretty far away from Enosburg). Mom wanted to reduce the number of mid-week transitions for the kids. Dad objected. Mom closed on the house in February 2017, and she also filed a motion to modify the parent-child contact schedule. Dad filed a motion to dismiss.
Parents went to court in the middle of May 2017, and agreed to an interim schedule that reduced midweek transitions and allowed their oldest child to finish the school year. The parties also had subsequent hearings in June and July. Father’s attorney argued that the change in the contact school required a new best-interests-of-the-child analysis to review legal custody. Mom’s attorney continued to object saying that modification of legal custody was not before the court.
Both parties submitted proposed findings of fact and conclusions of law after the July hearing. Dad’s proposal had two suggested alternatives: (1) the court could deny Mom’s motion and rely on Mom’s testimony that such a denial would require her to remain in Franklin County, or (2) the court could alter the schedule so that the children lived primarily with him.
The trial court decided that it was not limited to just parent-child contact, but it could consider whether modifying the underlying custody order was in the children’s best interest. The court modified the order giving the ability to choose the children’s primary residence and school to Dad, and gave Mom weekend parent-child contact.
The SCOV agrees with the trial court in that the current parent-child contact schedule was no longer feasible. Mom moved 2 ½ hours away and her move was indefinite. The move was a real, substantial, and unanticipated change of circumstances that supported her motion to modify parent-child contact.
The SCOV does not agree that the trial court should have also considered legal custody. The trial court erroneously concluded that legal custody was at issue. Dad argued that a particular rule of civil procedure (V.R.C.P. 15(b) for you nerds out there), permitted the court to amend his initial motion. However, the trial court did not refer to that rule in its decision. The trial court also relied on an unpublished three-justice decision as its basis for concluding that the trial court could still consider the issue. We learned in law school that unpublished three justice decisions can be persuasive, but they aren’t actually controlling. So, best not to cite them in our legal arguments.
So that previously referenced rule of civil procedure allows an issue to be added by amendment or by express or implied consent of the parties. If a party objects to evidence on the basis that the evidence is beyond the issues in play, then the party seeking to admit the evidence must seek an amendment to the pleadings.
Mom repeatedly objected to Dad’s testimony related to changing the legal custody. At one point, Mom’s attorney pointed out: “Had father filed a motion to modify rights and responsibilities, I agree that all of these issues would be on the table and we should be spending time going into all of these things, but there is no motion. It’s merely a question about the modification of parent-child contact.” The SCOV says that under these circumstances, Dad should have moved to amend his motion to dismiss or the trial court should have made a clear decision as to whether legal custody would be considered. Since the trial court did not, the only appropriate question was that of parent-child contact.
The SCOV reverses and remands.
Justice Skoglund and Chief Justice Reiber dissent. The basis for the dissent is that the SCOV is now putting “form over substance” and ignoring the court’s responsibility to adjust schedules for the best interests of the children.
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